Waskow v. Robert L. Reisinger Co.

• Decision Date: 01 May 1923
• Citation: 180 Wis. 537,193 N.W. 357
• Parties: WASKOW v. ROBERT L. REISINGER CO. ET AL.
• Court: Wisconsin Supreme Court

180 Wis. 537

193 N.W. 357

WASKOW

v.ROBERT L. REISINGER CO. ET AL.

Supreme Court of Wisconsin.

May 1, 1923.

Appeal from Circuit Court, Milwaukee County; A. H. Reid, Judge.

Action by Otto A. Waskow against the Robert L. Reisinger Company, the Consolidated Sheet Metal Works, and another. Judgment for plaintiff, and the last-named defendant and another appeal. Affirmed.

This is an action to recover for personal injuries sustained by plaintiff as a result of falling down an elevator shaft in an unfinished building.

Plaintiff is a plumbing contractor. Defendant Trapp Bros. Dairy Company was the owner of the building under construction. It hired an architect to supervise the work, and let contracts for the construction of certain parts of the building. The contract for the concrete and mason work was let to defendant Robert L. Reisinger & Co., hereafter called Reisinger Company; the sheet metal work to defendant Consolidated Sheet Metal Works. Plaintiff held the plumbing contract. The building was of reinforced concrete and tile, two stories high. Upon the roof, above the elevator shaft, there was a small house constructed, in which certain elevator machinery was to be placed. A metal-covered door gave access to the roof. Just inside this door there was a cement platform, or step, level with the roof, about 2 1/2 by 3 feet wide. A ladder had been placed between the second floor and this platform.

Plaintiff testified that on December 27, 1920, about 4 o'clock, he was instructed by the architect to examine certain plumbing on the roof; that he ascended the ladder and went upon the roof; that, as he returned and pulled the door shut, the handle came off, causing him to fall backward into the elevator shaft. Plaintiff alleged that his injuries were due to the failure of the defendants to properly attach the door handle and to their failure to guard the elevator shaft as required by statute.

An order of the Industrial Commission in effect at the time provided:

“All openings in floors, whether such floors are temporary or permanent, must be inclosed with substantial temporary railings not less than 34 inches high. Such railings must be constructed by the contractor who constructs the temporary or permanent floor, and must be constructed as soon as the floor around the opening is put in place, and must be left in place until the building is completed. Every scaffold adjoining a floor opening must have a railing on the side next to the opening.” 3503, Orders of Industrial Commission.

Defendant Consolidated Sheet Metal Work denied that the door was improperly installed or the handles improperly fixed, and denied that it was under any obligation to place guards around the elevator shaft.

Defendant Reisinger Company admitted that it had the contract for the mason and concrete work, but denied that it was at work on the day of the accident, and denied that any negligence on its part contributed to the injury.

Defendant Trapp Bros. Dairy Company denied all allegations of negligence, and by way of cross-complaint against the Reisinger Company alleged that that company agreed to indemnify the Trapp Company against any liabilities which might result from the carelessness of the Reisinger Company, and that, as a result, the Reisinger Company was bound to hold harmless the Trapp Co. against any judgments that might accrue by reason of the facts set forth in the complaint. An amended cross-complaint was filed in which an order of the Industrial Commission, quoted above, was set out, and it was alleged that this order had not been complied with by the Reisinger Company.

Robert L. Reisinger testified that he was the secretary of the Reisinger Company; that the company did the excavating, mason and concrete work on the building; that the work was commenced in May, and finished about December 4, 1920; that the concrete roof of the elevator house was poured previous to October 22d, and the shoring was removed about November 20th.

Testimony to the same effect was given by several of the employees of the company. Plaintiff at one time during his testimony said that on the day he was hurt the shoring had been removed. Further testimony was given to the effect that when the shoringwas removed the Reisinger Company built a railing around the elevator shaft and let it remain after the work was completed.

It appears that after the accident the Reisinger Company did some work on the floors, which work was occasioned either by a change or an error in the plans, and that this work was paid for beyond the contract price. The architect testified that at the time of the accident the shoring was still up in the elevator house, and that no guard rail had ever been placed around the shaft. He also testified that the Reisinger Company had not completed its work; that the level of some of the floors had to be changed; and that all that remained to be done in the elevator house was the tearing down of the shoring.

In a special verdict the jury found that, when plaintiff pulled the door shut and fell into the shaft, the handle came off as a result of having been improperly affixed when the door was installed; that the improper fixing constituted a want of ordinary care on the part of the Consolidated Sheet Metal Works, and that this was a proximate cause of the plaintiff's injury; that on the day of the accident there was no substantial railing along the edge of the elevator shaft, and that the absence of this railing was a proximate cause of the injury; that the interior of the elevator house was not as free from danger to workmen and frequenters engaged in constructing the building as the nature of the house and shaft would permit, and that this condition of the house was a proximate cause of the plaintiff's injury. It was further found that the Reisinger Company had erected a substantial railing along the edge of the elevator shaft, and had maintained it until it completed its original contract with Trapp Bros. Dairy Company; that no want of ordinary care on the part of plaintiff proximately contributed to his injury; and that plaintiff had suffered damage in the sum of $8,166.66. Judgment for that amount was ordered against defendants Consolidated Sheet Metal Works and Trapp Bros. Dairy Company. The complaint of plaintiff and the cross-complaint of defendant Trapp Bros. Dairy Company were dismissed as to defendant Robert L. Reisinger & Co.

Lines, Spooner & Quarles, of Milwaukee, for appellants.

Alfred Kay, of Milwaukee (Irving A. Fish, of Milwaukee, of counsel), for respondent Otto A. Waskow.

Samuel M. Field, of Milwaukee (Olwell, Durant & Brady, of Milwaukee, of counsel), for respondent Robert L. Reisinger & Co.

JONES, J. (after stating the facts as above).

The issue between the Trapp Bros. Dairy Company and the Reisinger Company on the cross-complaint involved purely questions of fact. The following portion of the opinion of the trial court very well states the nature of the issue between these parties and the conclusion reached:

“The findings of the jury, including the finding that Reisinger & Co. had constructed and maintained a substantial railing at the top of the elevator shaft until it had completed its original contract, appear to the court to be fairly sustained by the evidence. Therefore no change in any of the answers of the jury to the questions in the special verdict...